Public defender plan is a bad idea

Thursday

May 26, 2011 at 2:00 AMMay 29, 2011 at 2:49 AM

Earlier this year Gov. Deval Patrick proposed expanding the state bureaucracy by hiring 1,000 new attorneys and 500 support staff to create a new executive department charged with handling criminal and civil cases involving indigent defendants, victims and families.

AVIVA JERUCHIM

Earlier this year Gov. Deval Patrick proposed expanding the state bureaucracy by hiring 1,000 new attorneys and 500 support staff to create a new executive department charged with handling criminal and civil cases involving indigent defendants, victims and families.

The recently released Senate Ways and Means budget follows Patrick's path, calling for a 50/50 split in indigent defendant cases handled by public defenders and private bar advocates.

Backers of both proposals claim their plans will save money. However, a closer look reveals the opposite to be true. Taxpayers will bear the costs of bloated government, small businesses will be hurt, and some of the least fortunate members of society will fall through the cracks.

The Senate budget allots about $54 million for the 746 new attorneys who would need to be added to the state payroll to reach the 50/50 case mark. But the cost of salaries, benefits, office space, pension liabilities, support staff, transportation and one-time expenditures for computers, phones, furniture and other items total nearly $73 million for the first year, resulting in an instant $19 million deficit.

Additionally, it seems unwise to create a potential patronage haven at a time when there is such intense scrutiny of the probation and parole departments, the auditor's office and many other government agencies.

A smarter and simpler approach to saving the state money would be to improve the collection efforts of the $150 court fee assigned to all indigent defendants and families. In 2010, the court system handled 282,916 cases involving indigent parties, yet the state collected only $8.8 million in fees, leaving $34 million uncollected. Prior years show the same troubling collection pattern.

The private attorneys who take on public cases are generally small-business owners with local one-, two- or three-attorney offices, employing secretaries, paralegals, investigators and other workers. These small businesses add to the support system for other businesses such as printing shops, IT services, billing companies, office supply stores, private detective agencies and graphic designers.

These small law offices offer deep knowledge of local services for children and families in need of help, and their relationships with judges, clerks and service providers help accelerate the resolution of cases. This localized expertise cannot be replicated by staff attorneys in a centralized state office.

Pulling cases away from these local law offices, and reducing the number of hours they can work on existing cases, is a serious blow to the small-business community amid a tough economic climate. The state will see a drop in income tax revenues in direct proportion to the reduction in cases handled by these small offices.

Moving the Committee for Public Counsel Services to the executive branch, as proposed by the Patrick administration, would create significant conflict-of-interest concerns. The current system provides a funding buffer between public counsel attorneys and prosecutors. Moving public defenders into the executive branch would eliminate this separation, leading to an ethically murky internal structure of prosecutors, defense attorneys, victims and defendants.

While the bulk of the proposals from the governor and the House miss the mark, the move to tighten the screening process for individuals seeking public representation is worthy. Like welfare, unemployment or any other government benefit, public defense assistance should be provided only to those without the means to secure private representation.

As senators prepare to debate their budget, they should make a thorough appraisal of the cost and effectiveness of the 50/50 proposal. They'll find that the dollar savings, and the societal benefits, simply aren't there. Shifting caseloads from private bar advocates to new state-salaried attorneys will result in little more than bigger and more expensive state government.

Aviva Jeruchim is an attorney in Boston and president of the Massachusetts Association of Court Appointed Attorneys.

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